# C_2016156EN.01000402.xml

| 2.5.2016 | EN | Official Journal of the European Union | C 156/4 |
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2.5.2016

EN

Official Journal of the European Union

C 156/4

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Judgment of the Court (Fifth Chamber) of 10 March 2016 (request for a preliminary ruling from the Audiencia Provincial de Barcelona — Spain) — Safe Interenvíos SA v Liberbank SA, Banco de Sabadell SA, Banco Bilbao Vizcaya Argentaria SA

(Case C-235/14) (1)

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((Reference for a preliminary ruling - Prevention of the use of the financial system for the purpose of money laundering and terrorist financing - Directive 2005/60/EC - Customer due diligence measures - Directive 2007/64/EC - Payment services in the internal market))

(2016/C 156/05)

Language of the case: Spanish

Referring court

Referring court

Audiencia Provincial de Barcelona

Parties to the main proceedings

Parties to the main proceedings

Applicant: Safe Interenvíos SA

Applicant:

Defendants: Liberbank SA, Banco de Sabadell SA, Banco Bilbao Vizcaya Argentaria SA

Defendants:

Operative part of the judgment

Operative part of the judgment

| 1. | Articles 5, 7, 11(1) and 13 of Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing as amended by Directive 2010/78/EU of the European Parliament and of the Council of 24 November 2010 must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which, first, authorises the application of standard customer due diligence measures in so far as the customers are financial institutions whose compliance with due diligence measures is supervised when there is a suspicion of money laundering or terrorist financing within the meaning of Article 7(c) of that directive and, secondly, requires the institutions and persons covered by the directive to apply, on a risk-sensitive basis, enhanced customer due diligence measures in situations which by their nature can present a higher risk of money laundering or terrorist financing within the meaning of Article 13(1) of the directive, such as that of the transfer of funds.
  Furthermore, even in the absence of such a suspicion or such a risk, Article 5 of Directive 2005/60 as amended by Directive 2010/78 allows the Member States to adopt or retain in force stricter provisions where those provisions seek to strengthen the fight against money laundering and terrorist financing. |
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1.

Articles 5, 7, 11(1) and 13 of Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing as amended by Directive 2010/78/EU of the European Parliament and of the Council of 24 November 2010 must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which, first, authorises the application of standard customer due diligence measures in so far as the customers are financial institutions whose compliance with due diligence measures is supervised when there is a suspicion of money laundering or terrorist financing within the meaning of Article 7(c) of that directive and, secondly, requires the institutions and persons covered by the directive to apply, on a risk-sensitive basis, enhanced customer due diligence measures in situations which by their nature can present a higher risk of money laundering or terrorist financing within the meaning of Article 13(1) of the directive, such as that of the transfer of funds.

Furthermore, even in the absence of such a suspicion or such a risk, Article 5 of Directive 2005/60 as amended by Directive 2010/78 allows the Member States to adopt or retain in force stricter provisions where those provisions seek to strengthen the fight against money laundering and terrorist financing.

| 2. | Directive 2005/60 as amended by Directive 2010/78 must be interpreted as meaning that the institutions and persons covered by that directive may not compromise the task of supervising payment institutions with which the competent authorities are entrusted pursuant to Article 21 of Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC, as amended by Directive 2009/111/EC of the European Parliament and of the Council of 16 September 2009, and may not take the place of those authorities. Directive 2005/60 as amended by Directive 2010/78 must be interpreted as meaning that, whilst a financial institution may, in performing the supervisory obligation which it owes in respect of its customers, take account of the due diligence measures applied by a payment institution in respect of its own customers, all the due diligence measures that it adopts must be appropriate to the risk of money laundering and terrorist financing. |
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2.

Directive 2005/60 as amended by Directive 2010/78 must be interpreted as meaning that the institutions and persons covered by that directive may not compromise the task of supervising payment institutions with which the competent authorities are entrusted pursuant to Article 21 of Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC, as amended by Directive 2009/111/EC of the European Parliament and of the Council of 16 September 2009, and may not take the place of those authorities. Directive 2005/60 as amended by Directive 2010/78 must be interpreted as meaning that, whilst a financial institution may, in performing the supervisory obligation which it owes in respect of its customers, take account of the due diligence measures applied by a payment institution in respect of its own customers, all the due diligence measures that it adopts must be appropriate to the risk of money laundering and terrorist financing.

| 3. | Articles 5 and 13 of Directive 2005/60 as amended by Directive 2010/78 must be interpreted as meaning that national legislation such as that at issue in the main proceedings, adopted pursuant either to the discretion which Article 13 of that directive grants the Member States or to the power in Article 5 of the directive, must be compatible with EU law, in particular the fundamental freedoms guaranteed by the Treaties. Whilst such national legislation designed to combat money laundering or terrorist financing pursues a legitimate aim capable of justifying a restriction on the fundamental freedoms and whilst to presume that transfers of funds by an institution covered by that directive to States other than the State in which it is established always present a higher risk of money laundering or terrorist financing is appropriate for securing the attainment of that aim, that legislation exceeds, however, what is necessary for the purpose of achieving the aim which it pursues, since the presumption which it establishes applies to any transfer of funds, without providing for the possibility of rebutting the presumption in the case of transfers of funds not objectively presenting such a risk. |
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3.

Articles 5 and 13 of Directive 2005/60 as amended by Directive 2010/78 must be interpreted as meaning that national legislation such as that at issue in the main proceedings, adopted pursuant either to the discretion which Article 13 of that directive grants the Member States or to the power in Article 5 of the directive, must be compatible with EU law, in particular the fundamental freedoms guaranteed by the Treaties. Whilst such national legislation designed to combat money laundering or terrorist financing pursues a legitimate aim capable of justifying a restriction on the fundamental freedoms and whilst to presume that transfers of funds by an institution covered by that directive to States other than the State in which it is established always present a higher risk of money laundering or terrorist financing is appropriate for securing the attainment of that aim, that legislation exceeds, however, what is necessary for the purpose of achieving the aim which it pursues, since the presumption which it establishes applies to any transfer of funds, without providing for the possibility of rebutting the presumption in the case of transfers of funds not objectively presenting such a risk.

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(1)  OJ C 235, 21.7.2014.

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